Even though the 7 Exceptions to the Search Warrant Rule allows officers to search premises, property and people without a warrant, it’s almost always preferable to obtain one before doing so. Photo AP/Michael Conroy
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Knowing how to legally search a person, place or thing and properly seizing evidence are basic requisites to the investigative process. Officers also must have a clear understanding of when a search and/or arrest warrant is required and when it s not.
The Fourth Amendment protects citizens from unreasonable government searches and seizures of their persons, houses, papers, and effects. The Fourth Amendment also states no warrants shall be issued but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or things to be seized. (Minnesota v. Dickerson, 113 S. Ct. 2130 (1993)1.
However, both the U.S. Supreme Court and federal courts have carved out specific, limited exceptions to the Fourth Amendment search warrant requirement, which are commonly referred to as the seven exceptions to the search warrant rule.
The seven exceptions to the Fourth Amendment are exigent circumstances, search incidental to a lawful arrest, consent, plain view, caretaker function, inventory/impounded vehicles and motor vehicle.
Exigent means emergency, which means under life saving circumstances. Example: An elderly person in a wheel chair is trapped inside a burning apartment. Because lives are at stake, an officer can forcibly enter the apartment without a search warrant to rescue the person. The key: time and public need. The officer doesn t have time to get a warrant, and there s an immediate risk of harm to the public that requires immediate official action.
Another example: a situation in which public safety is paramount. If officers are being shot at, they may have to conduct a search of premises or a building without a search warrant because both the officers and the public are in imminent danger. Likewise, if an officer has probable cause to believe evidence is going to be destroyed, or if an officer is in hot pursuit of an escaped felon who runs into a house, a warrant isn t required. In Mincey v. Arizona (1978)2, the Supreme Court ruled officers don t have to delay a search if doing so endangers their lives or others.
Search Incident to Lawful Arrest
In a 1973 U.S. Supreme Court decision (United States v. Robinson, 17 414 U.S. 218)3, the Court stated, It is the fact of the lawful arrest which establishes the authority to search, and we hold that in the case of the lawful custodial arrest a full search of the person is not only an exception to the warrant requirement of the Fourth Amendment, but is also a reasonable search under the amendment.
The arrest must be valid under law. For the search without a warrant to be valid, the officer must be able to specifically articulate probable cause that the person committed a crime and there must have been an intention on the part of the officer to arrest prior to the search of the person. What is prohibited is the search of a person who is not yet under arrest in which contraband is found and then an arrest for possession of the contraband based on that search. The search of a person under arrest is subject to the areas under that person s immediate control (Chimel v. California, 395 U.S. 752 (1969)4.
Example: The police observe a woman with a purse commit a crime. Officers may search her purse without a warrant. If officers find contraband and/or evidence of a crime in the purse, officers may charge the woman for both the original incident and for the evidence found in the purse.
Good report writing is key here. It s important for the officer to articulate the probable cause factors leading the officer to believe the woman committed a crime and the search of the purse was incidental to the arrest.
Officers and prosecutors face the heavy burden of proof, and searching a person or place with consent always presents problematic legal issues. Officers must prove the defendant voluntarily consented to a search, and there were no threats or promises of any kind.
Officers can search without a warrant if they have consent from a person who has the authority to give it. Probable cause is not required if the consent is knowingly and intelligently given.
In addition, there are several legal issues officers must overcome when conducting interviews, interrogating and taking statements and confessions, including:
1. Who can consent to a search;
2. What constitutes voluntarily consent; and
3. What limitations does the law impose on those conducting the search.
Age is also considered in legally defining consent. A child can t give consent, so you must know the age a person is considered to be a child in your state. Likewise, a parent may consent to the search of a child s room where no rent is paid, but a hotel manager or landlord may not provide legal consent to search unless the room or apartment is abandoned.
In addition, it s difficult to prove a person impaired by alcohol, drugs, a mental condition (psychological and/or genetic dysfunction), injury or a language barrier voluntarily gave consent. In a 1990 decision, (Illinois v. Rodriguez 497 U.S. 177)5 the U.S. Supreme Court ruled a person can consent to a search if the facts available to the officer at the time of entry warrant a man of reasonable caution to believe the consenting party has authority over the premises.
Most officers carry a legal form with carefully written consent-to-search language people sign to indicate their voluntary consent to the search. However, in a 1973 Supreme Court decision (Schneckloth v. Bustamonte, 412 U.S. 218)6, the court ruled officers don t have to specifically advise an individual they don t have to consent. A person s consent, even if in writing, can be withdrawn at any time and the police must stop searching.
If an officer is lawfully in a place and has probable cause to believe an item is contraband, stolen, property or other evidence of a crime, the officer can seize it without a search warrant. This is known as the plain-view doctrine.
In Horton v. California (496 U.S. 128)7, the Court reiterated when an officer has a right to be where they are, anything an officer observes in plain view is not the product of a search and is admissible as evidence. Example: An officer pulls over a car during a traffic stop and sees the handle of a gun protruding from under the passenger seat. If the motorist is not in legal possession of the weapon, the officer may seize it and charge the motorist with a criminal offense.
The courts have also repeatedly ruled that officers may use visual enhancement devices, such as flashlights and binoculars. In fact, it s common for cities to have cameras mounted in public places with officers in kiosks viewing television monitors.
People routinely turn over found property to the police. Officers on patrol also come across found or abandoned property and take it into their possession until its owner can be located.
Officers taking property into their care can search the items without a warrant. Example: If a footlocker is turned over to the police, officers have the right to open it without a search warrant to determine if its contents are dangerous to them or the public or if its contents can identify the owner.
Impounded Vehicles Inventory
Can a car towed by the police be searched without a warrant? In 1976 in South Dakota v. Opperman (428, U.S. 364)8, the court ruled that impounded vehicles may be searched and inventoried using the standard police procedures to secure the vehicles and its contents. This is similar to the caretaker-function exception to the Fourth Amendment.
If an officer found contraband or evidence of a crime during the inventory of the vehicle and had probable cause to believe it belonged to the registered owner or an arrested person, the officer has a basis for an arrest. The court has pointed out that the inventory search cannot be used as a pretext for discovering incriminating evidence, and it s best if a department has written policy requiring officers to inventory all towed and impounded vehicles.
If you want to search a vehicle that s part of a crime scene, obtain a search warrant. If a person was found shot to death in a vehicle, after the body was removed, you d certainly want to obtain a search warrant to thoroughly process the car for items of evidentiary value.
Motor Vehicle Exception
Fourth Amendment protection against searching motor vehicles without a search warrant has diminished over time. In 1925, the court ruled in Carroll v. United States (2657 U.S. 132)9 that if there was probable cause for an officer to secure a search warrant, it may be impractical because the vehicle was movable.
In a 1981 case (New York v. Belton, 453 U.S. 454)10, the Supreme Court ruled that when a police officer arrests a person in a vehicle, the officer may search the vehicle s passenger compartment, including any open or closed containers, but not the trunk.
In 1999, the court ruled in Maryland v. Dyson (527 U.S. 465)11 that a warrantless search of a vehicle may be justified if an officer has probable cause to believe the vehicle contains contraband, controlled substances or criminal evidence. The court reiterated that although the search is limited to areas where the officer has probable cause to believe an item may be located, the search extends to any container found that might contain the item.
Keep in mind that stopping a vehicle for a routine violation doesn t mean there s probable cause to believe the vehicle contains contraband, controlled substances or evidence of a crime.
It has been my experience that obtaining a search warrant is almost always preferable than searching a person, place or thing without one. Officers must keep in mind that just because we re legally able to search without a warrant, it doesn t mean it s the wise thing to do.
1. Minnesota v. Dickerson, 113 S. Ct. 2130 (1993)
2. Mincey v. Arizona (1978).
3. United States v. Robinson, 17 414 U.S. 218).
4. Chimel v. California, 395 U.S. 752 (1969).
5. Illinois v. Rodriguez 497 U.S. 177).
6. Schneckloth v. Bustamonte, 412 U.S. 218).
7. Horton v. California (496 U.S. 128).
8. South Dakota v. Opperman (428, U.S. 364).
9. Carroll v. United States (2657 U.S. 132).
10. New York v. Belton, 453 U.S. 454).
11. Maryland v. Dyson (527 U.S. 465).